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Opinion: What some lawmakers still don't get about encryption

A congressional report says encryption makes America safer. Why are these two Representatives refusing to sign on?

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Joshua Roberts
The US Capitol is lit at sunset.

鈥淎ny measure that weakens encryption works against the national interest.鈥

That statement in support of strong security measures on consumer devices comes from an unexpected source: The House of Representatives.

The bipartisan Encryption Working Group, composed of 12 members of the Judiciary and Energy and Commerce committees, has been working since March to assess whether Congress should require tech companies to guarantee law enforcement access to encrypted data.

While the FBI Director and some lawmakers want to require companies to build in ways for law enforcement to get around otherwise strong security measures designed to protect consumers from criminal hackers and other digital threats, digital聽聽universally accept that encryption is crucial to secure communications, from Apple鈥檚 iMessage to online banking.

And privacy advocates like myself are happy to see the panel鈥檚 nearly unanimous findings renouncing so-called 鈥渂ackdoors鈥 in encrypted communications.

But everyone should be dismayed by the refusal of two representatives in the working group, Joe Kennedy (D) of Massachusetts and Adam Kinzinger (R) of Illinois, to sign onto the findings. That decision underscores an unfortunate lack of commitment to Americans鈥 privacy, fundamental ignorance about encryption and how it keeps people safe, or both. 聽

罢丑别听聽of the Encryption Working Group rightly notes that efforts to mandate companies build workarounds to their otherwise strong encryption are not in the national interest.

To reach that conclusion, lawmakers talked to the national security community, which argued encryption was critical to secure critical infrastructure. Civil society organizations explained the importance of encryption in protecting 鈥渋ndividual privacy, freedom of speech, [and] human rights,鈥 and to guard 鈥渁gainst government intrusion at home and abroad.鈥 And private sector stakeholders described encryption as one of the 鈥渟trongest cybersecurity tools available鈥 to protect users鈥 information against a wide array of foreign and domestic digital threats.

The report also concluded that there is no 鈥渙ne-size-fits-all solution鈥 to the difficulty encryption may pose to law enforcement, sometimes referred to as the 鈥済oing dark鈥 phenomenon.

There are fairly moderate, well-considered conclusions. But Representatives Kennedy and Kinzinger did not sign onto the report that the other 10 representatives in the working group published. Those who did sign on included high-powered members, such as the chairmen and ranking members of both committees.

I asked both abstaining representatives to comment. Only Representative Kennedy鈥檚 office responded before deadline, writing: 鈥淐ongressman Kennedy believes that encryption has critical implications for consumers, law enforcement and our national security. 聽Each demand serious attention and care from policymakers. The Congressman ultimately did not feel that the working group had the time to give this topic the due diligence it deserves.听聽

Dissenting from the the working group鈥檚 findings, nine months in the making, is concerning on its own. But it appears to be just the latest in a long and problematic history that Kennedy and Kinzinger share: One that strongly suggests these representatives support backdoors in encryption.

Both Kennedy and Kinzinger have faced this issue before.听The Massie-Lofgren amendment would have聽聽of Americans鈥 communications that get collected through mass surveillance programs. (The collection in question is, by statute, supposed to be focused on foreign actors.) The amendment would have also prohibited the Department of Defense from mandating backdoors in encryption.

Kennedy and Kinzinger have聽the Massie-Lofgren amendment all three times it was considered. The first time, in 2014, it was supported by an overwhelming, 293-member majority, but leadership聽聽the provision from the final spending package.

Both lawmakers also opposed a聽聽offered by Rep. Justin Amash (R) of Michigan designed to end bulk collection of Americans鈥 records under Section 215 of the Patriot Act. That amendment failed by聽, meaning only seven Representatives could have swung the vote in favor of reining in that authority. Kennedy, it is worth noting, was the only member of the Massachusetts delegation to聽.听

Taken altogether, it appears these representatives stand for a political position that is as problematic as it is untenable. They apparently support warrantless, mass surveillance of Americans, the warrantless targeting of Americans in databases explicitly authorized for foreign intelligence purposes, and聽聽these things for the sake of national security.

But Kennedy and Kinzinger cannot plausibly claim to be focused on the country鈥檚 security while failing to oppose backdoors. If they were committed to security in any serious capacity, they would have concluded at least what the Encryption Working Group and what聽聽has been saying for decades: You cannot have an encryption backdoor that isn鈥檛 also a vulnerability. Their abstention and voting records reveal they either don鈥檛 understand that or they don鈥檛 care 鈥 and in any event that they definitely do not support a ban on backdoors in the technology that keeps Americans safe.

This is a debate that鈥檚 only going to intensify next year.听聽

We鈥檝e already seen how the San Bernardino shooting in 2015 rejuvenated the debate over whether encryption stops investigators from getting access to important information.听

After FBI Director James Comey said the FBI was unable to access an iPhone found during the San Bernardino investigation, he called on Congress to require tech companies have ways for law enforcement to decrypt data.

After that, Intelligence Committee leaders Senators Richard Burr (R) of North Carolina and聽Dianne Feinstein (D) of California introduced legislation along those lines. Apple 鈥 with the support of many other tech companies 鈥 challenged the FBI.听

, along with security and privacy experts, noted weakened encryption simply puts holes in the armor we depend on to protect consumers and critical infrastructure. Experts also argued and eventually explained,聽, that there were other ways for the FBI to break into the phone.

The anti-backdoor coalition also earned the support of national security hawks. Even Michael Hayden, former director of the CIA and NSA, agreed that requiring companies to build backdoors is an extraordinarily bad idea: 鈥淚 think on balance that actually harms American safety and security,鈥 he聽聽Capital Download.

After feverish public debate, the FBI dropped its case after admitting there were other ways to break into the phone. But threats from insecure data are only increasing. Hackers played a major role in the presidential election by stealing and leaking communications from American political organizations. And the public learned that 1 billion Yahoo accounts were compromised in what might be the聽

It will be more important than ever for lawmakers to understand encryption.听But聽Kennedy and Kinzinger鈥檚聽refusal to oppose cryptographic backdoors means they are not only sacrificing Americans鈥 privacy 鈥 they聽are pushing bad policy at the expense of聽security. Unfortunately, it鈥檚 their constituents who will pay the price.

Sean Vitka serves as counsel for Demand Progress and Fight for the Future and is a fellow with X-Lab. He also serves as director of the聽.听Follow him on Twitter .

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